The Rewards and Risks of Low-Risk Assessment in the High-Stakes Law School Classroom

\\jciprod01\productn\E\ELO\7-2\ELO208.txt unknown Seq: 1 20-AUG-15 12:10 “IT’S NOT FOR A GRADE”: THE REWARDS AND RISKS OF LOW-RISK ASSESSMENT IN THE HIGH-STAKES LAW SCHOOL CLASSROOM OLYMPIA DUHART* I. INTRODUCTION Even before they walk into their first classroom, law students are convinced that law school is an ultra-competitive game. And in many significant ways—class ranking, grading curves, teaching methods— the competitive nature of law school is reinforced and confirmed. To- day, the escalating cost of legal education1 and shrinking job opportunities nationwide2 have only fueled the notion of law school as a zero- sum game with very high stakes. Law schools are even ranked based on student competitiveness.3 After all, law school has never been an en- deavor for the faint of heart.4 * Professor of Law and Director of the Legal Research and Writing Program at Nova Southeastern University, Shepard Broad College of Law. Many thanks to Frederick J. Pye III and Joseph Morgese for their research assistance with this article. I also appreci- ate the important feedback from Cai Adia. Finally, I am grateful for the very helpful comments from Professors Andrea Curcio, Kim Chanbonpin, and Patricia Propheter on early drafts. 1 See Debra Cassens Weiss, Legal Education Cost Is Even Higher Than First Estimated, Transparency Group Says, A.B.A. J. (May 7, 2012, 2:37 PM), http://www.abajournal.com/ news/article/legal_education_cost_is_even_higher_than_first_estimated_transparency _group/; see also Jackie Gardina & Ngai Pindell, What Is the Progressive Response to Law School Costs?, SALTLAW BLOG (May 11, 2013), http://www.blog.saltlaw.org/progressive- response-to-rising-costs-of-legal-education/. 2 Dimitra Kessenides, Jobs Are Still Scarce for Law School Grads, BLOOMBERG BUSINESS- WEEK (June 20, 2014), http://www.bloomberg.com/bw/articles/2014-06-20/the-em ployment-rate-falls-again-for-recent-law-school-graduates. 3 Staci Zaretsky, Which Law School Has the Most Competitive Students?, ABOVE L. (Oct. 10, 2013, 1:25 PM), http://abovethelaw.com/2013/10/which-law-school-has -the-most- competitive-studentsand-which-law-school-offers-the -best-quality-of-life/. 4 Indeed, popular culture has long traded on the extremely competitive nature of law school. See, e.g., SCOTT TUROW, ONE L: THE TURBULENT TRUE STORY OF A FIRST YEAR AT HARVARD LAW SCHOOL (1977) (The author offers his now-classic memoir about his (491) \\jciprod01\productn\E\ELO\7-2\ELO208.txt unknown Seq: 2 20-AUG-15 12:10 492 Elon Law Review [Vol. 7: 491 But the high-stakes law school culture collides in many ways with effective teaching methods. The law school culture is especially at odds with assessment tools that should be designed to maximize opportunities for feedback and learning, particularly those opportunities with little risk for failure or penalty. Feedback is most effective as formative assessment when it is “conducted during learning to pro- mote, not merely judge or grade, student success.”5 Formative assessments, which are generally focused on improvement,6 should occur frequently in law school settings. The more practice the students have, the better off they will be. However, allowing students to participate in multiple assessment opportunities will come at a high price if each assessment is bound up with great exposure to failure. Often, students are so focused on the grade that they are not able to approach the experience as an opportunity to learn. And who can blame them? Who would ever want to learn to play a new instrument if every turn at the piano were in front of a packed audience at Carnegie Hall? As law schools move to implement changes to standards that call for formative assessment,7 educators must consider the efficacy of vari- ous formative assessment models. The wider impact on the adoption of the formative assessment models should also inform the curriculum and course design. Instructors should consider whether the assessment tools would exacerbate the problem of the high-stakes, high-pres- sure law school environment. In one recent study, for example, about forty percent of law school students were clinically depressed by gradu- law school experience.) See also THE PAPER CHASE (20th Century Fox 1973). The film about the struggles of a first-year student has been revived through memes memorial- izing the trials of law school. Most recently, network television has promoted the hypercompetitive nature of law school through shows such as How to Get Away with Mur- der, where students would literally kill to be at the top of the class. See How to Get Away with Murder (ABC television broadcast Sept. 2014). 5 Rick Stiggins, From Formative Assessment to Assessment FOR Learning: A Path to Success in Standards-Based Schools, PHI DELTA KAPPAN, Dec. 2, 2005, at 324, 326. 6 Roberto L. Corrada, Formative Assessment in Doctrinal Classes: Rethinking Grade Ap- peals, 63 J. LEGAL EDUC. 317, 319 n.5 (2013). 7 The American Bar Association recently adopted new standards that call for formative assessment. See Transition to and Implementation of the New Standards and Rules of Procedure for Approval of Law Schools, A.B.A. 2 (Aug. 13, 2014), http://www.americanbar .org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/ governancedocuments/2014_august_transition_and_implementation_of_new_aba_ standards_and_rules.authcheckdam.pdf [hereinafter Transition to New Standards]. See infra Part II.B and accompanying notes. \\jciprod01\productn\E\ELO\7-2\ELO208.txt unknown Seq: 3 20-AUG-15 12:10 2015]Rewards and Risks of Low-Risk Assessment in the Classroom 493 ation.8 Moreover, law professors wading into the new world of formative assessments9 should be mindful not to import the overemphasis on grades from the familiar world of summative assessment or final ex- ams. Instead, professors should more expansively incorporate low-risk formative assessment in the law school classroom. The term “low-risk formative assessment” refers to assessment that does not run the risk of having a high impact on a student’s public performance or grades. They are low-stakes assignments that carry no or very low grade impact. Most importantly, these low-risk assessments focus on feedback over scores and performance. The goal is to provide students an opportunity to practice—and even “fail”10—with very little risk. The possibili- ties for these assessments are almost limitless; they could include in- class practice quizzes that are collected or self-graded, group assignments, games, mock debates, or out-of-class projects crafted by students.11 Critics argue that multiple low-stakes practice opportunities are stripped of their validity when they do not have a significant impact on grades. However, there is new thinking about low-risk assessment that suggests that low-risk, ungraded assessments offer multiple benefits to 8 Debra Cassens Weiss, ‘You Are Not Alone’: Law Prof Who Considered Suicide Tells His Story, A.B.A. J. (Apr. 8, 2014, 10:50 AM), http://www.abajournal.com/news/article/ you_are_not_alone_law_prof_who_considered_suicide_tells_his_story. In the same study, the students were no more depressed than the general population prior to law school, where about eight percent report depression. Id. The reasons for law student depression are well documented. Marjorie Silver, a professor at Touro Law Center in Central Islip, N.Y., who speaks to students about her own struggle with depression, notes several contributing factors. First, law students come into the profession expecting success—and then [ninety] percent are disappointed when they don’t rank in the top [ten] percent. Further, Silver says, students are thrust into an unfamiliar learning environment in which the predominant Socratic teaching method undermines self-esteem. Hollee Schwartz Temple, Speaking Up: Helping Law Students Break Through the Silence of Depression, ABA J. (Feb. 1, 2012, 8:50 AM), http://www.abajournal.com/magazine/arti cle/speaking_up_helping_law_students_break_through_the_silence_of_depression/. 9 The distinctions between formative and summative assessments will be addressed in greater detail below. See infra Part II.A and accompanying notes. 10 “Formative work is low stakes when taking a risk to learn something new. Failure at first is expected, but equally expected is a rise from it to find success. If an athlete doesn’t do the work to improve. .they are not going to perform when it is game time.” Kathy Dyer, Accurately Defining Formative Assessment, NORTHWEST EVALUATION ASS’N (Oct. 30, 2013), https://www.nwea.org/blog/2013/accurately-defining-formative-assess ment/. 11 Examples of low-risk formative assessment assignments are provided in Appendices A through F. \\jciprod01\productn\E\ELO\7-2\ELO208.txt unknown Seq: 4 20-AUG-15 12:10 494 Elon Law Review [Vol. 7: 491 law students and professors. First, low-risk assessments can help mini- mize performance-inhibiting anxieties in law students.12 Eventually, these performance anxieties can become significant obstacles to learning and development.13 Although grades have been called the “peda- gogical whip”14 in teaching, frequent opportunities to practice that do not have any or much impact on grades can also be valuable. They can alleviate student anxiety and help prepare students for a more effective practice performance.15 Low-risk assessments can also allow instructors to collect a more accurate reflection of what their students know and do not know. These stronger snapshots of student understanding are an essential component for professors who need to make appropriate teaching adjustments. The low-risk formative assessments also put the focus properly on learning and understanding. These types of assessments can optimize student performance and strengthen the feedback loop. All of these practices support greater student success rates. Through creativity, freedom from the norms of law school assessment, and explicit communication with students about methodology, law professors can develop effective, ungraded, low-risk assessment tools.

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